(dissenting.) I am unable to concur in the able opinion of my brother, Judge Porter, in this case, and will briefly state my reasons wlr^. I think the opinion fails to consider at all important questions raised by the record, and discussed before us, upon argument, while the conclusion reached on some of the questions discussed I think are wrong. Several important questions were discussed on argument, and, among other objections, appellant insisted, in the first place, that, even though the plaintiff had otherwise shown himself entitled to recover, his own negligence so contributed to the injury as to preclude a recovery. In the second place, that the plaintiff was a fellow-servant with Moore, the engineer, through whose alleged negligence the injury occurred, and was therefore not entitled to recover. No negligence of the defendant being shown, all proof of the general reputation of Moore for unfitness, by reason of his general habits of intoxication, being improperly in the case, is without force to charge the defendant with negligence. And, third, that the court erred in its rulings and instructions. There were other questions discussed, but the main contention was over these propositions, as I have stated them. Upon these questions I now desire to state my views.
1. The proposition that, in an action of this kind, the plaintiff cannot recover, provided his own negligence contributed to the injury received, is too well founded in reason, and justified by authority, to admit of question,—hardly of discussion. Such must be regarded as settled law. The cases which announce such doctrine are too numerous to recite, but reference to a few are given here: Lake Shore, etc., R. R. Co. v Miller, 25 Mich. 274; Marquette, etc., R. R. Co. v. Handford, 39 Mich. 539; Daniels v. Clegg, 28 Mich. 32; Minnick v. City of Troy, 83 N. Y. 514.
In the 25 Mich, case the following language is used: ‘ ‘ The *190law is too well settled by the overwhelming weight of authority, both in England and the United States, to be now disputed, that, in an action like this—recovery for an injury arising from negligence of the defendants in carrying on their lawful business, without wanton or intentional wrong—the plaintiff cannot recover if his own negligence directly or approximately contributed to produce the injury, though the defendants may also have concurred in producing the result. This rule, it is true, often, perhaps generally, fails to produce justice, and, upon abstract principles of right and wrong, may be said to be frequently unjust in its operation. Justice might seem to require that each should bear the loss in the proportion they have respectively contributed to the injury. But precisely here lies the difficulty which is inherent in the nature of the subject, and the infirmity necessarily incident to all human administration of justice,—the impossibility of ascertaining which portion of the injury was produced by the negligence of the one, and what by the other, and in apportioning to each his just share of liability. * * * The absence of contributory negligence on the part of the plaintiff is therefore just as essential an element in the cause of action as the negligence of the defendants, and just as clearly constitutes a necessary part of the plaintiff’s case; and until he has shown it, or until, in some way, it appears from the evidence, he does not make a prima facie case.” See, also Wilson v. Charlestown, 8 Allen, 138, 85 Am. Dec. 693; Galena C. U. R. Co. v. Fay, 16 Ill. 585, 63 Am. Dec. 323; Warner v. New York C. R. Co., 44 N. Y. 465.
There are certain exceptions to this rule, of course, and what they are is very fully and ably shown in the discussion of the case in 25 Mich., but a consideration of those exceptions in this case is not important. The rule being so well settled, any further discussion, I think, is unprofitable. But whether the plaintiff has been guilty of contributory negligence is usually a question of fact for the jury, and not one of law for the court. Of course, there may be cases where the negligence is so apparent, and the question so free from doubt, that it becomes the duty of the court to say that the plaintiff has been himself so negligent as to preclude a recovery. To warrant the court, however, in deciding that in any given case the *191plaintiff was guilty of negligence, sucli case must be very clear, and one that reasonably and fairly would warrant no other inference than that of negligence. When, therefore, the question of negligence depends upon a disputed state of facts, or when the facts, though not disputed, are such that different minds might honestly draw different conclusions from them, the court cannot give positive instructions upon that subject, but must leave the jury to draw their own conclusions upon the fact, and upon the question of negligence dependent upon them. Grand Rapids & I. R. Co. v. Judson, 34 Mich. 506; Sutton v. Wauwatosa, 29 Wis. 21, 9 Am. Rep. 534.
On the trial of this case it appears the plaintiff contended that there was no evidence of contributory negligence on his part, while the defendant, with equal earnestness, insisted that the evidence of such fact was so clear that it was the duty of the court to have directed a verdict in its favor, and that, even if this were not so, there was still error in the instructions given on the subject, and in its submission to the jury. To determine which of these opposing positions is correct, we must examine into the testimony given on the trial, and the charge of the court. The case in behalf of the plaintiff mainly rested on his own testimony; at least, so far as the circumstances of the accident itself, this is true. Prom his testimony it appears that he was in the employ of the defendant, engaged as a workman in the construction of its road, or, rather, a branch thereof; that on the day he was injured he in common with two or three hundred other employes, were taken on board a train of box cars from the point where they were working back over the road, to Benson, a distance of four or five miles, for dinner; that, after obtaining the dinner, he jumped upon an engine and water car, upon which were two large water tanks, believing that was the train that was to take him back to his work, but, instead thereof, the train was carelessly, and at a high rate of speed, backing down the line of the road against some stationary cars standing thereon; and that, in the collision which- took place, both his legs were broken in such a manner that amputation thereof became necessary; that he was called by the whistle of the locomotive to go upon such train, and did so, *192believing it was the train to convey him back to his work; and claims, further, that, by reason of such whistle of the locomotive, he was properly upon the ear in question; and that the accident took place by and through the carelessness of Moore, the engineer in charge of such locomotive.
There is testimony on behalf of defendant tending to show that this was a. locomotive and car upon which the plaintiff had no business to be; that it was simply switching in the yard opposite the eating-house where plaintiff obtains his dinner, and that plaintiff sat in the rear of the car as it backed up against the stationary cars, with his feet hanging over; and that he was careless, not only in going upon the ear in question, but also in the manner in which he sat upon the car. In this regard it is proper to state that the plaintiff’s own testimony shows that the empty cars upon which he came to his dinner were on another track from the one he was on, and that he was aware of the fact when he went upon the water car upon which he was injured. From the evidence, I have no doubt the question of contributory negligence was one of fact for the jury. It is true, there are some things shown in the proofs of appellant which, if taken as true, no court should hesitate to declare the plaintiff guilty of such negligence as to prevent a recovery,—such, for instance, as that tending to show that the plaintiff went upon the car where he was hurt knowing the same was not the car for him to ride upon, and while such ear was backing up and switching, before the time had come for him to go upon another car at all; and that he negligently rode, with his legs hanging down over the rear of the car, while it was being propelled backwards against the stationary cars. If such were the facts, of course, no court should hesitate in declaring the plaintiff guilty of such gross negligence as would anywhere prevent a recovery on his part. But this proof was denied by the plaintiff, and thereupon it became a question for the jury, who, and not the court, are to ascertain the truth from the conflicting testimony. Conley v. McDonald, 40 Mich. 150; Railway Co. v. Slattery, 39 Law T. (N. S.) 265; Improvement Co. v. Munson, 14 Wall. 448; Pleasants v. Fant, 22 Wall. 122; Hickman v. Jones, 9 Wall. 201.
*193This was a question of fact, depending upon the credibility of witnesses, or inferences from facts about which honest-minded men might fairly differ, and therefore it became a question of fact for the jury. But, while this was so, the appellant had a clear legal right to insist that the question should be fairly sumbitted to the jury under proper instructions. I do not think that was done. Appellant, on this branch of the case, asked the court to give the following request: “If you find that the plaintiff, in the exercise of ordinary care, might have avoided the injury, either by getting upon a different ear, or occupying a different place upon the same car, and such want of ordinary care contributed approximately to the injury, he cannot recover.” This was refused, and, I think, wrongly so. The request was proper in form, and pertinent and correct in law, and there was no similar instruction given in the general charge. The court in the instruction did use the following language: “If there be negligence on the part of the defendant, then whether it should be exempt from liability by reason of contributory negligence of the plaintiff is a question for your determination, under the evidence, as applied to the law of contributory negligence.” That is the only reference to the question of contributory negligence throughout the entire charge. Evidently the judge, in giving this instruction, intended to refer again to the subject, but omitted to do so. This, it is easy to see, did not present the question as fully and fairly as it was appellant’s right to have done. The jury should have been told, in substance, that if the plaintiff, by going upon that particular car, at the time and under the circumstances that he did, or by reason of the position taken by him thereon, or by any other act of his disclosed by the evidence and belief by the jury, was guilty of negligence contributing to the injury suffered, or if he omitted to exercise such due care as a reasonable, prudent, and careful person would have taken to avoid the accident, then he could not recover. The rules of law applicable to the subject should have been plainly stated. Nothing of the kind, however,' appears in the instruction, and the jury are left entirely in the dark as to what it meant by “the law of contributory negligence,” or *194even as to what that expression, so used by the court meant. The request of the appellant should, therefore, have been given; and, under the circumstances, there being an entire absence of anything similar in the charge of the court, it was error to have refused it. The opinion of my Brother Porter omits entirely any reference to this feature of the question of contributory negligence, which was one of the vital questions in this case, and one that, it seems to me, should demand serious consideration at our hands. It is, indeed, stated in that opinion that the facts disclosed by the record are such that the court could not properly have decided the question of contributory negligence, and so far I agree with the opinion of Judge Porter. What I say is that the question was not fairly submitted to the jury, which is a wholly different question from the one whether or not the trial judge should have passed upon the question of contributory negligence.
2. I next consider the question arising out of the relations which the plaintiff bore to Moore, the engineer, through whose negligence he claims he was hurt, and the proof as to Moore’s unfitness for the position he occupied. The plaintiff on the trial sought a recovery upon the two distinct theories: First, that the defendant was liable to the plaintiff for the negligence of Moore the same as it would be to a passenger or other person not in its employ, Moore not being a fellow-servant with the plaintiff; and, second, even if this were not so, and plaintiff and Moore were fellow-servants, still defendant was liable to the plaintiff on the ground that it was negligent in retaining Moore in its employment after he had become unfit by reason of habits of intoxication to discharge the duties of his place, and that these habits were so notorious the defendant should have known them.
In view of these theories upon the trial it is necessary to notice the case as made by the declaration. That is composed of two counts or causes of action. In the first the negligence is charged as follows: ‘ ‘ That the engine or locomotive used by defendant in drawing its train was imperfect, and out of order, and in unsafe condition; that, by reason of such unsafe condition of said engine, and the negligent and careless handling of the same by the defendant and its servants, the car *195upon which plaintiff was, was driven with great violence against the box car standing upon its said railroad track, by which plaintiff was thrown with great violence against said box car, and both his feet were caught between said box car and upon which said plaintiff was.” The second count alleges the negligence as follows: “That while he [plaintiff] was upon said train of cars, as aforesaid, at the said town of Benson, in the county of Cochise, in said territory, a collision occurred on said railroad, caused by the negligence of said defendant and its servants, whereby the plaintiff was much injured, and had both his legs so bruised, crashed, and mangled that it was necessary, in order to save plaintiff’s life, to amputate both of the said legs.”
This is the declaration entire, so far as it undertakes to charge negligence. On the trial the plaintiff recovered upon the theories just stated, both of which were, by the court, submitted to the jury, who rendered a general verdict for the plaintiff. It is therefore uncertain which theory recovery was had upon. The court permitted the proof of the general habits of intoxication of Moore against the objection of appellant that the same was incompetent and inadmissible under the complaint. I feel entirely certain that this objection should have been sustained.
The complaint disclosed no such cause of action as proven in this regard, and did not apprise appellant that the same would be proved against it as a ground of recovery. This appellant was entitled to know. It is a rule of pleading that “every system of judicial altercation has for its object the accomplishment of two ends, ^the first to apprise the parties, and the second apprise the court, of its precise subject of controversy; and these ends imply the necessity for precision in the use of words, in order to avoid equivocation,—to guard against the mischief and injustice of misleading statements. In construing the language of the declaration the course is to make reasonable intendments, and read and apply the terms in the natural and usual sense, and without supposing this or that qualification, which, though possible, is not fairly indicated.” Batterson v. Chicago, etc., Ry. Co., 49 Mich. 187, 13 N. W. 508.
*196In Flint & P. M. Ry. Co. v. Stark, 38 Mich. 717, it is said: “Negligence consists in the failure to observe that degree of care which the law requires for the protection of the interests liable to be injuriously affected by -the want of it. In making out negligence, the first requisite is to show the existence of the duty which has been neglected. That duty is necessarily set out in the declaration, and the neglect averred, and the failure to prove it is a failure to make out the plaintiff’s case.” See, also, Bluffton v. Mathews, 92 Ind. 213; Gilman v. Eastern R. Corp., 10 Allen, 233, 87 Am. Dec. 635.
In the ease before us the direct cause of the injury was, of course, the alleged negligence of Moore in running the locomotive at too high a rate of speed, and the claimed negligence of the company upon which alone the proofs undertake to hold it responsible, aside from the theory that Moore and plaintiff were fellow-servants, was the omission on its part to make frequent or any examination into the qualifications or habits of Moore after having employed him, there being no claim that there was not due care in hiring him in the first instance. Now, under any system of pleading, code or otherwise, the facts upon which negligence is claimed must be stated. Marquette H. & O. R. Co. v. Marcott, 41 Mich. 433 ; 2 N. W. 795. In that case it is stated that “reason and good sense, as well as law, compel the plaintiff, by his declaration in these eases, to inform the defendant and the tribunal what the complaint is; and he must not only show that the defendant has been negligent, but must further show in what respect. The maters of negligence to which the injurious consequences referred must be properly stated.” See, also, Wright v. New York Cent. R. Co., 25 N. Y. 566; Boone, Code Pl. § 174; City of Buffalo v. Holloway, 7 N. Y. 493, 57 Am. Dec. 550; Taylor v. Atlantic Nut Co., 2 Bosw. 106; Gautret v. Egerton, L. R. 2 C. P. 371.
There is no hardship to plaintiff in this or any other form of action in compelling him to adhere to the rule here stated, and which is supported by the clear weight of authority. He should know, when he commences his suit, the ground upon which he is to proceed. A contrary rule, however, or one which would sustain as correct the general allegations of *197negligence, would be of incalculable hardship to a defendant, who might never know the negligence or omission to be relied upon till announced for the first time upon the trial. I do not mean by what I have said to intimate, even, that such proofs of general reputation for unfitness as were offered and received in this case, but against objection, may not be sufficient to authorize the recovery in a case where it is properly pleaded. I have no doubt that if an employer negligently employs an unfit person, generally known and reputed as such, or negligently continues such a person in his employment after such reputation has become known, the responsibility must rest upon such an employer, even though, in point of fact, he may have been ignorant of such unfitness, provided reasonable and proper care or examination and supervision would have made known such unfitness. The ignorance itself would be regarded as negligence in a case in which any proper inquiry would have obtained the necessary information, and where the duty to inquire was plainly imperative. But in such case the plaintiff must allege the unfitness of the person employed,—the knowledge thereof by the defendant, or the existence of such facts as would amount to actual knowledge on the part of the defendant, and that would estop the defendant from a denial thereof. In such case, upon the trial, the burden is upon the plaintiff to prove that the defendant had such knowledge of such claimed unfitness, either actual or through such facts and circumstances as would estop the plaintiff from denying knowledge of the unfitness of such servant through whose negligence such injury happened. Quincy Min. Co. v. Kitts, 42 Mich. 34; N. W. 240.
The difficulty in this ease is that one of the main theories and causes upon which the plaintiff recovered upon the trial, .namely, the negligence of the defendant in retaining Moore in its employ after his unfitness by reason of his habits of intoxication, which were so notorious that the defendant should have known them, and would, had it exercised reasonable care in the management and supervision of its work and its employes, was not alleged in the complaint, and the proof of such cause of action was improperly received, against the *198objection of the defendant. My brethren, while agreeing that this proof was improperly received, think it conld not injure the defendant, and in this I cannot agree with them. It cannot be known from the charge of the court, and the verdict, rendered, but that the recovery was had upon this proof; and, certainly, if that be so, it cannot be said the proof could do no injury. But even if it be true that the recovery was had upon the theory that the defendant was liable for the direct negligence of Moore, then the admission of this testimony, admitted to be incompetent, would be error. Its natural and inevitable effect was to prejudice the jury in passing upon any question of fact submitted to them,—to induce them to act from passion rather than from judgment.
3. This brings me to a consideration of the question whether Moore and the plaintiff were fellow-servants or not. Upon this subject I think that Moore and the plaintiff were unquestionably fellow-servants, and that being so, the law is well settled that the master is not liable to those in his employ for injuries directly and naturally charged to the negligence of fellow-servants, nor, under the authorities, does it make any difference that such fellow-servants are in different departments of employment, provided they are engaged in the same general business. Davis v. Detroit & M. R. Co., 20 Mich. 105, 4 Am. Rep. 364; Farwell v. Boston & W. R. Corp., 4 Metc. 49, 38 Am. Dec. 339; Gilman v. Eastern R. Corp., 10 Allen, 233, 87 Am. Dec. 635; Bold v. New York Cent. R. Co., 18 N. Y. 432; Weger v. Pennsylvania R. Co., 55 Pa. St. 460; Pittsburg, etc., Ry. Co. v. Devinney, 17 Ohio St. 209; Moseley v. Chamberlain, 18 Wis. 700; Randall v. Baltimore & O. R. Co., 109 U. S. 478, 3 Sup. Ct. Rep. 322.
In this latter ease it is held that a brakeman, working a switch for his train on one track in a railroad yard, is a fellow-servant with an engine-man on another train of the same corporation, upon an adjacent track, and cannot maintain an action against the corporation for an injury caused by the negligence of the engine-man in driving his engine too fast, and in not giving due notice of its approach, without proving negligence of the corporation in employing an unfit engine-man. The pleader in that case followed the rule *199which I have already stated, and which I think should prevail in all similar eases. The declaration there alleged that the servant through whose alleged negligence the injury took place was unskillful, negligent, and unfit to perform the business and employment he was engaged in by the plaintiff to perform, and that his unskillfullness and negligence and unfitness were known to the defendant. The doctrine as to liability for negligence of a fellow-servant in that case is stated as follows: “The general rule of law is now firmly established that one who enters the service of another takes upon himself the ordinary risks of his fellow-servants, in the course of the employment;” and while declining in that case to lay down the precise or the general definition as to who are fellow-servants, the court says: “Persons standing in such a relation to one another as did this plaintiff and the engine-man of the other train are fellow-servants, according to the very great preponderance of judicial authority in this country, as well as to the uniform course of decisions in the house of lords, and in the English and Irish courts, as is clearly shown by the cases cited. They are employed and paid by the same master. The duties of the two bring them to work at the same place, and at the same time; so that the negligence of the one in doing his work may injure the other in doing his work. Their separated services have an immediate common object,—the moving of trains. Neither works under the control or orders of the other. Each, by entering into his contract of service, takes the risk of the negligence of the other in performing his service; and neither can maintain an action for an injury caused by such negligence against the corporation,—their common master.”
Under the rule here laid down, Moore and the plaintiff were unquestionably fellow-servants. They were employed and paid by the same master, and neither worked under the control or orders of the other; but both were under the control and orders of Pitch, the foreman of the work. Moore had no .authority whatever over the plaintiff. Pitch directed when the train should start, where it should go, and directed the plaintiff and the other workmen when and where they should go upon the train to be conveyed to their dinner. Both Moore *200and the plaintiff were therefore directly and absolutely under the control and orders of Pitch. They were therefore clearly, in my judgment, fellow-servants. It would serve no useful purpose to undertake to collect and review the many and conflicting authorities upon this subject, of who are, and who are not, fellow-servants. The true rule, sanctioned and sustained by the highest authority, as I understand it, is that the fellow-servant for whose negligence the company ^ is not liable is one who labors in the same common employment, and who has not authority over the one injured, and who, no more than the injured party, is charged with the discretionary exercise of powers and duties resting upon and belonging to the company. The person causing the injury by his negligence must occupy some superior or commanding position to that of the person injured. Chicago & N. W. Ry. Co. v. Bayfield, 37 Mich. 205; Moon v. Railroad Co., 8 Va. Law J. 540; Nashville & D. R. Co. v. Jones, 9 Heisk, 27; Farwell v. Boston & W. R. Corp., 4 Metc. 49, 38 Am. Dec. 339; Randoll v. Baltimore & O. R. Co., 109 U. S. 478, 3 Sup. Ct. Rep. 322
In Bartonshill Coal Co. v. Reid, 3 McQueen, 266, and Bartonshill Coal Co. v. McGuire, 3 McQueen, 300, the parties injured were miners, employed to work in a coal-pit, and the party whose negligence caused the injury was employed to attend the engine by which they were let down into the mine. The same engine, however, raised the coal from the bottom of the mine to the surface. In that case it was held that the engineer and the workmen were engaged in a common work, the court saying: “The miners could not perform their part unless they were lowered to their work, nor could the end of their common labor be attained unless the coal which they got was raised to the pit’s mouth, and, of course, at the close of the day’s labor, the workmen must be lifted out of the mine. Every person who engaged in such an employment must have been perfectly aware that all this was incident to it, and that the service was necessarily accompanied with the danger that the person entrusted with the machinery might be occasionally negligent, and fail in his duty.”
I do not think that the ease of Chicago, etc., Ry. Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. Rep. 184, decided by the *201supreme court of the United States, and relied upon by the plaintiff, establishes any other or different doctrine from that that I have stated. That case, like all the others, on examination, would be found to put the right of recovery upon the ground that the person through whose negligence the injury happened, was in a place of authority over the person injured, and occupied such a position as, for the time being, to stand in the place of and represent the company. Of course, in such a case as that, there can be no question about the liability of the company for the injuries so caused; but it is not true to say that Moore stood in any such position or attitude in the present case. In the Boss Case, just cited, Mr. Justice Field, in pronouncing the very able opinion in that case, says: “There is, in our judgment, a clear distinction to be made, in their relation to a common principle, between servants of a corporation exercising no supervision over others engaged with them in the same employment, and agents of the corporation, clothed with the control and management of a distinct department, in which their duty is entirely that of direction and* superintendence. A conductor, having the entire control and management of a railway train, occupies a very different position from the brakeman, the porters, and other subordinate employes. He is, in fact, and should be treated, as the personal representative of the corporation, for whose negligence it is responsible to subordinate servants. * * * We know from the manner in which railways are operated that, subject to the general rules and orders of the directors of the companies, the conductor has entire control and management of the train to which he is assigned. He directs when it shall start, at what speed it shall run, at what stations it shall stop, and for what length of time, and everything essential to its successful movements; and all persons employed on it are subject to his order. In no proper sense of the term is he a fellow-servant with the firemen, the brakemen, the porters, and the engineer. The latter are fellow-servants in the running of the train under his direction, who, as to them and the train, stands in the place of and represents the corporation.” Now, I concur in all that, and give it my full sanction, but I cannot see how the case can *202aid the plaintiff at all here. The reasoning there used and employed, as I look at it, is directly opposed to the position of plaintiff in this case. Upon the trial there was no pretense, and could be none, that the engineer, Moore, stood in the place of, or in any manner represented, the company. As I have already stated, he was simply, like the plaintiff, acting under the orders and control of the foreman of the work, who directed when and how the train should be moved. I think I have now said enough to indicate my views upon the features of the case stated, to show why I cannot concur in the opinion filed. Of course, the rule that I have stated here does not exempt the defendant from liability from negligence in employing an unfit servant, or negligently retaining such servant in its employment. Such a case, if properly alleged and proved, may justify a recovery, but under the declaration in the present case no such recovery could be had. As I have shown, the defendant was entitled to have such a case properly alleged. It is true, an amendment may remedy this hereafter; but that does not help the plaintiff now, as the case stands. The objection made to such proof affected the substantial rights of the defendant on this trial, and it is entitled to the benefits thereof. For the reasons stated I think the verdict and judgment should be reversed.